ASSAM MADHYAMIK SIKSHAK ARU KARMACHARI SANSTHA, NAGAONversusTHE STATE OF ASSAM AND ORS.

A                     ASSAM MADHYAMIK SIKSHAK ARU
                      KARMACHARI SANSTHA, NAGAON
                                         v.
                       THE STATE OF ASSAM AND ORS.

                                  APRIL 30, 1996
B
                 [K. RAMASWAMY AND G.B. PATTANAIK, JJ.]

            SelVice law :

C           Assam Secondary Education (Provincialisation) Act, 1977:

           Section 4-Teachers working in aided institutions taken over by
    Government-Recognised to be the existing employees with reference to the
    appointed dar1hose who opt to retire on attaining the age of 58 years
    entitled to pension-Those who opt to continue till the completion of 60 years
D   entitled to CPF-ln the absence of Rules no option given to teachers and they
    continued in se1Vice till completion of 60 years-Teachers who remained in
    se1Vice after the appointed day and were yet to complete the age of 60
    years-Government treating them as entitled to pension-Held, those who
    continued till 60 years and withdrawn their CPF should redeposit the same
E   to the credit of the Government-On such deposit being made State directed
    to treat them on par with those teachers entitled to pension as per the draft
    Rules now mad,,_They should be treated as if they were Government teachers
    on the appointed day-Entitled to pensionary and other benefits admissible
    to them.

F           CIVIL APPELLATE JURISDICTION: Civil Appeal No. 8854 of
    1996.

         From the Judgment and Order dated 27.9.94 of the Assam High
    Court in W.A. No. 90 of 1994.
G
         P.K. Goswami, Rajiv Mehta, C.K. Sasi and Kailash Vasdev for the
    Appellant.

            S.N. Chaudhri and S.A. Syed for the Respondents.

H           The following Order of the Court was delivered :
                                         116
   ASSAM MADHYAMIKSIKSHAK ARU KARMA CHARI SANSIHA v. STATE 117


      We have heard learned counsel on both sides.                               A

      Leave granted.

       This appeal by special leave arises from the order dated September
27, 1994 made in W.A. No. 90/94. As regards the validity of Section 4(3)
of the Assam Secondary Education (Provincialisation) Act, 1977 (Assam            B
Act No. XIX of 1977) (for short, the 'Act') which deals with teachers
working in the aided institutions taken over by the Government under the
State Act with effect from the appointed day who were recognised to be
the existing employees with reference to the appointed day. Sub-section (3)
of Section 4 envisages that notwithstanding anything in the preceding            C
section, all employees other then Grade IV employees of a Secondary
School coming within the purview of the Act, shall retire on superannuation
of 58 years. Grade V employees on attaining the age of 60 years, shall get
superannuated. But such of those teachers who intend to continue on
service beyond 58 years, are required to exercise their option either to the
Pension Scheme or to the payment of C.P.F. Scheme. Such of the teachers          D
who opt to retire on attaining the age of 58 years, shall be entitled to the
payment of pension and those who opt lo continue till the completion of
60 years, are entitled to the C.P.F. The discrimination is discrirninably
based on policy. No fault can be found in this behalf. Teachers of the
Provincialised Secondary Schools who had not exercised their option for          E
either of the scheme, were deemed to have not exercised their option for
the latter scheme and are required to retire on attaining the age of 58 years.

      It is the case of the appellant-Association of teachers that since Rules
have not been made, no option has been given to the teachers and they
remained in service till completion of 60 years. In the case of teachers who     F
had remained in service after the appointed day and were yet to complete
the age of 60 years, the State Government itself has resolved to treat them
as Government teachers entitled to pension on attaining the age of 58 years
but the salary paid to such teachers would not be recovered from them.

      In view of the above resolution, it is contended by Mr. P.K. Goswami, G
learned senior counsel appearing for the Association, that the same benefit
may be given to the teachers who continued as teachers on appointed day,
namely, October 1,1977 and those who remained in service till attaining 60
years be treated as Government employees entitled to the benefit of the
pension. The admitted position is that they had already withdrawn their H
    118                  SUPREME COURT REPORTS [1996] SUPP.2S.C.R.

A C.P.F. which was due to them after their attaining the age of 60 years. Such
    of the teachers who had withdrawn the C.P.F. should re-deposit the same
    to the credit of the government. On such deposit being made, the Stale is
    directed to treat them at par with the second category of teachers as per
    the draft Rules now made and to treat them as if they are the Government
    teacher on the appointed day and on that basis, they would be entitled to
B   pensionary benefits as applicable to all the Government employees who
    would retire on attaining the age of 58 years and other benefits admissible
    to them.

          The appeal is accordingly disposed of. No costs.
c G.N.                                                   Appeal disposed of.




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